Justice Dept. warns ruling in Trump ally’s suit could endanger U.S. diplomats

A judge’s ruling allowing a close ally of former President Donald Trump to obtain documents about Qatar’s activities in the U.S. could endanger the safety of American diplomats abroad, a Justice Department attorney argued to a federal appeals court Friday.

That ruling, the Justice Department argued, could imperil U.S. diplomats by encouraging other countries to gain access to records held by security or building contractors for U.S. embassies.

The warning about American diplomats overseas came as lawyers for former Republican National Committee deputy finance chair Elliot Broidy squared off with attorneys for Qatari agents ina suit Broidy filed to uncover details of how a large trove of his emails leaked to news outlets in 2018 as part of what he has claimed was an illegal “hack and smear” campaign.

U.S. District Court Judge Dabney Friedrichruled in June that Qatar could not invoke the Vienna Convention to prevent the Persian Gulf state’s former representatives in the U.S. from having to turn over sensitive documents to Broidy’s lawyers as part of the ongoing litigation.

“One critical concern to the United States is that the district court’s categorical error poses a serious threat to how the United States operates its embassies overseas, in terms of reciprocity,” DOJ lawyer Martin Totaro told a D.C. Circuit Court of Appeals panel hearing Qatar’s appeal seeking confidentiality for the records.

Totaro said the U.S. “not infrequently” relies on contractors for embassy construction and security and the specter of foreigners getting access to those records in litigation overseas is alarming.

“As the government reads the district court's order, none of the very important documents that are provided to those individuals, including, for example, like blueprints of an embassy, would be protected,” the Justice Department attorney told the panel of judges.

Lawyers for Broidy have argued that the kinds of documents maintained by the defendants in the case — former GOP congressional aide Nicolas Muzin, former Democratic Hill aide Gregory Howard and New York restaurateur Joseph Allaham — aren’t truly confidential because the Foreign Agents Registration Act allows the Justice Department to inspect such files on demand.

“There’s no way that a country could have an expectation of privacy when it turns over documents to FARA-registered agents,” Broidy attorney Daniel Benson said. “If the documents are open to inspection by the government at any time ... how can they have an expectation of privacy in any of those documents?”

Qatar’s lawyer warned the judges that they’d be making a mistake if they ruled that documents were basically fair-game for litigation simply because they might be required to be turned over under other laws in certain circumstances. He suggested that could put beyond the reach of diplomatic protection a large swath of records of interest to the U.S. government.

“This is not hypothetical,” Zionts said. “Russia has FARA-type laws.”

However, a majority of the three-judge appeals panel seemed inclined Friday to conclude that Friedrich erred by reaching the categorical conclusion that Qatar had no confidentiality interest in its communications with Muzin, Howard and Allaham.

When Benson offered his narrow take on the impact of the treaty covering diplomatic and consular relations, D.C. Circuit Judge Neomi Rao jumped in, saying, “The Department of Justice doesn’t take that view.”

“The government is wrong. I think they’re plainly wrong,” Benson said, arguing that experts contend documents foreign diplomats share with outsiders are not off-limits.

Rao and Chief D.C. Circuit Judge Sri Srinivasan both signaled that they believed Friedrich should instead have opted for a document-by-document approach to determine whether Qatar’s diplomatic mission had a confidentiality interest in specific communications.

But Broidy lawyer Daniel Saunders said that approach would bog down the litigation, aimed at exposing alleged involvement by Qatar’s agents in the hacking of Broidy’s messages.

“Qatar’s interest here is delay,” Saunders told the court. “We will have piecemeal prejudgment appeals that will be subject to tremendous delay and abuse. It'll be five more years before anything happens in this case.”

The third judge on the appeals panel, Robert Wilkins, repeatedly raised procedural concerns about Qatar’s approach to the case. He noted that while the country is appealing Friedrich’s ruling, it’s not a party to the lawsuit and offered views to the judge solely as a friend-of-the-court.

“It accepted its limited role,” Wilkins said of Qatar, suggesting that his court might not have jurisdiction to take up the appeal.

Friedrich and Rao are appointees of President Donald Trump. Srinivasan and Wilkins were appointed by President Barack Obama.